IN THE SUPREME COURT OF
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No. 04-1118
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City of
v.
Charles Pollock and Tracy Pollock, Individually and as next Friends of Sarah Jane Pollock, a Minor Child, Respondents
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On Petition for Review from the
Court of Appeals for the Fourth District of
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Argued October 18, 2006
Justice Medina, joined by Justice O’Neill, dissenting.
The Pollocks
claim that Sarah’s leukemia was caused by her in utero
exposure to benzene, which had migrated from the
The City concedes that methane and benzene migrated from its landfill into the surrounding community. The City also does not contest the underlying science relied on by Dr. Patel or the dangers of exposure to benzene, a known carcinogen. Instead, the City contends that analytical gaps in the testimony of both experts render their respective opinions conclusory. The Court eventually agrees after delving into the underlying science. The Court analyzes the relationship between methane and benzene, the respective physical properties of both gasses, benzene’s relationship to certain types of leukemia and chromosomal damage, and the respective testimony of both experts. Most significantly, however, the Court concludes that the City did not have to object or point out these analytical gaps in the trial court to preserve error. I respectfully disagree.
As a general rule, an objection is
required to preserve error regarding the admission of evidence, and expert
testimony is no exception. See Tex.
R. App. P. 33.1(a); Tex.
R. Evid. 103(a)(1); Osterberg
v. Peca, 12 S.W.3d 31, 55 (
I
I agree, however, that analytical gaps can undermine the reliability of an expert’s opinion. The Supreme Court said as much in General Electric Co. v. Joiner, 522 U.S. 136 (1997), observing that courts do not have to focus entirely on the reliability of the underlying methodology or technique as in Daubert,[1] but are free to test reliability by analyzing whether the expert’s opinion fits the facts of the case:
[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence . . . connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
This Court soon followed Joiner,
concluding in Gammill v. Jack Williams
Chevrolet, Inc., that an expert’s opinion can be unreliable if there is too
great an analytical gap between the underlying data and the expert’s opinion.[2] 972 S.W.2d 713, 727 (
A trial court, however, cannot abuse
its discretion if it is never asked to exercise it. Thus, to preserve a
no-evidence complaint that expert testimony is unreliable, a party must object
in the trial court. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,
409-10 (
When the expert’s testimony is
speculative or conclusory on its face, a party does
not have to object to its admissibility to complain that the expert’s naked
opinion is no evidence. See Coastal Transp. Co. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (
The distinction apparently is the difference between something and nothing. As the Court recently explained in Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008): An expert’s testimony is conclusory if the expert merely gave an unexplained conclusion or asked the jury to “take my word for it” because of his status as an expert. Arkoma concluded that an expert’s opinions were not conclusory even though the expert’s foundational data was not in the record, and it was not entirely clear how the expert had reached his conclusions. We wrote:
[The expert’s] testimony could have been a lot clearer; his references to “up here” and “right there” on slides and posters used at trial often make it hard to tell what he is talking about. But we cannot say on this record that his opinions were unreliable or speculative. Nor were they conclusory as a matter of law; [the expert] did not simply state a conclusion without any explanation, or ask jurors to “take my word for it.” It is true that without the foundational data in the appellate record, we cannot confirm that “cash off my runs ... divided by mcf” yielded the $1.62, $1.41, $1.43, and $1.59 prices he calculated as the low range for damages. But experts are not required to introduce such foundational data at trial unless the opposing party or the court insists.
Texas law requires an objection to expert testimony before or during trial if the objection “requires the court to evaluate the underlying methodology, technique, or foundational data,” but no objection is required if the complaint “is restricted to the face of the record,” as when the complaint is that an opinion was speculative or conclusory on its face, or assumed facts contrary to those on the face of the record.
The exception was applied in Coastal, however. In that case, Coastal failed to object to the following testimony from a trucking-safety expert regarding gross negligence:
Q: When viewed objectively from Coastal's point of view at the time of the September ‘93 incident, in your opinion, did Coastal's failure to stop using probes that could have [sensor failure] problems, did that involve a high degree of risk, considering the probability and magnitude of the potential harm to others?
A: Yes, it did, very high.
Q: In your opinion, did Coastal have an actual subjective awareness of the risk involved in failing to stop using probes that can have [sensor failure] problems?
A: Yes, again and again.
Q: And in your opinion, did Coastal nevertheless proceed with conscious indifference to the rights, safety, or welfare of others?
A: That’s the only conclusion I can draw.
In rendering his opinion, Kraft, the landfill engineer, used a generally accepted Environmental Protection Agency (“EPA”) landfill air model,[4] testimony regarding odors in the Pollock home indicative of the presence of organic hydrocarbons, such as benzene, the City’s gas monitoring records, a physical site inspection, and two decades of historical geologic records and maps. Because no benzene readings had actually been taken at the Pollock home, Kraft relied on, among other things, a 1998 benzene reading from a sealed monitoring well known as GMP-9A. This well was in the landfill 100 feet from the Pollock home and 128 feet underground. Although the reading at GMP-9A was taken more than four years after Sarah’s alleged in utero exposure in 1993, Kraft concluded that the benzene levels in the Pollock home would have been equal to or greater than that of a sample taken from the well in 1998, that being, 160 ppb (parts per billion) benzene.
The City argues that Kraft’s opinion is conclusory because he does not explain how the benzene concentration level in the Pollock home can be the same as that in a sealed testing well. Although Kraft’s opinions were predicated on various reports and an EPA landfill gas emissions model, the City maintains that his testimony contains a fatal “analytical gap” because he failed to account for atmospheric conditions. This analytical gap, the City argues, renders Kraft’s opinion conclusory.
The complaint, however, goes to Kraft’s methodology or technique in evaluating the data because he was comparing benzene concentrations not only at different locations but also at different points in time. Relying on his air model, Kraft testified that the benzene levels produced by the landfill peaked in the late seventies and began to diminish thereafter. Thus, benzene levels would have been higher in 1993 during Sarah’s gestation than in 1998 when the benzene reading from the monitoring well was taken. Kraft testified to the following without objection:
Q. Mr. Kraft, have you done any calculations and projections about the migration of gas that the – from the West Avenue Landfill to the Pollock home during the period 1992 to 1994?
A. Yes.
* * *
Q. Okay. What kind of records did you look at in reaching your opinions?
A. Field data sheets from methane surveys that were done in the neighborhood surrounding the landfill, interoffice correspondence with the City of San Antonio, letters to the City of San Antonio from the TNRCC [Texas National Resource Conservation Committee] and the Texas Department of Health, records on geologic data that was collected by City employees, reports that were produced by the City’s consultants.
* * *
Q. Do you have an opinion, Mr. Kraft, as to whether the Pollocks were chronically exposed to benzene concentrations in their home?
A. Yes, I do have an opinion on that.
Q. And what is that opinion?
A. It’s my opinion that they were chronically exposed to landfill gas.
Q. And did the landfill gas include benzene?
A. Yes, it did.
Q. What is your opinion of the range of benzene to which they were exposed? And please express it in terms of a numerical value.
A. I believe that they were consistently exposed to benzene concentrations in the vicinity of 160 parts per billion, or even higher.
Q. In your report, Mr. Kraft, I believe you said 40 to 160 parts per billion; is that correct?
A. That’s correct.
Q. Why are you now saying it might be higher than 160 parts per billion?
A. For several reasons.
Q. And what are those reasons?
A. Number one would be the gas modeling that I did with the United States Environmental Protection Agency model, the — you know, the landfill gas emissions model, which indicates that the amount of benzene produced by the landfill decreased over time.
Q. What other reasons, Mr. Kraft?
A. The analytical results that were collected at GMP-9 in January of 1998, they also measured the oxygen concentration. Landfill gas – landfill gas samples that have over 2 percent oxygen indicate that there has been some dilution from atmospheric air occurring, therefore, the concentrations that were measured in that sample were likely to be slightly lower than they were in the actual landfill gas itself, because it was diluted while they were sampling it.
In accordance with the City’s argument, the Court suggests that Kraft testified that the air in the Pollock’s home was the same as that in the sealed well, but the above demonstrates this to be an inaccurate representation of his testimony. Kraft testified that the concentration of gas in the landfill was likely higher than the samples taken from the well because these samples had already been diluted with atmospheric air. Thus, the Court assumes the existence of an analytical gap that may have existed, but also might have been explained had the City made an appropriate objection.
Next, Dr. Patel, the pediatric oncologist, gave his opinion that Sarah’s in utero exposure to benzene during the first trimester caused her ALL. He relied on: (1) his review of the literature, (2) the matched pattern of abnormalities in Sarah’s chromosomes and the chromosomal abnormalities in lab-induced carcinogenesis caused by benzene exposure, (3) his academic background in human genetics, and (4) Kraft’s opinion that Sarah’s mother was chronically exposed to at least 160 ppb of benzene while Sarah was in utero. Dr. Patel, moreover, excluded other plausible factors for Sarah’s ALL, including family history and benzene exposure from other sources.
While the City acknowledges that Dr. Patel based his opinion, in part, on his review of certain epidemiological studies, it maintains that Dr. Patel’s testimony is conclusory because none of these studies actually support his scientific opinion. In particular, the City argues that these studies all involve substantially higher exposure levels and, moreover, fail to find a causative association between benzene exposure and Sarah’s particular type of leukemia. None of these concerns were brought to the trial court’s attention, and Dr. Patel testified without objection.
Moreover, Dr. Patel explained that the exposure levels in these studies were actually less than Sarah’s daily, chronic exposure during gestation. Dr. Patel explained that the effect of a toxin is based on two types of exposure, the peak dose exposure and the duration of that exposure. Taking both into account, the studies report their results as cumulative exposure over time, often as an annual dosage. Dr. Patel testified that the Pollocks’ chronic exposure here would convert to a much greater annual dosage than those discussed in the studies. Moreover, Dr. Patel testified that Sarah’s chronic and cumulative in utero benzene exposure as a developing fetus was more significant than the annual exposure to an adult as described in the studies. Again, there was no objection to these conclusions.
The underlying epidemiological studies referenced by Dr. Patel reflect a correlation between exposure to benzene and an increased risk for certain types of leukemia. For example, the studies in evidence reflected that occupational benzene exposure in the mother was related to a risk of childhood leukemia, especially acute nonlymphocytic leukemia (“ANLL”); that benzene metabolites could cause chromosomal damage in human lymphocytes; that benzene could cross the placenta and harm a fetus; that exposure to benzene could cause chromosomal damage similar to that suffered by Sarah; and that benzene exposure is responsible for at least a portion of childhood cancers of which ALL is the most common. Dr. Patel further testified about epidemiological evidence linking benzene to another form of leukemia, acute myeloid leukemia (“AML”), and quoted from the article “that evidence linking benzene to AML is no less persuasive than for ALL.” None of this testimony came as a surprise to the City as Dr. Patel had made these same points in his expert report.[5]
The opinions and testimony of the
engineer and doctor here are far removed from the “bare conclusions” we
rejected as conclusory in Coastal. See Coastal
Transp. Co., 136 S.W.3d at 232 (witnesses
qualifications and bare opinion not enough). Neither expert asked the jury to
trust their opinion merely on the basis of their expertise. They instead
purported to analyze the underlying data that they (and apparently the City
also) considered relevant before rendering their respective opinions.
The City’s present complaints about
analytical gaps is nothing more than an unpreserved reliability
challenge. Analytical gaps are not complaints about naked opinions, lacking any
basis in the record, but rather are assertions that specific errors or
omissions in an expert’s analysis render his or her opinion unreliable. See,
e.g., Ford Motor Co. v. Ledesma, 242 S.W.3d 32,
38-39 (Tex. 2007); Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 578 (Tex. 2006); Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797, 800 (Tex. 2006); Kerr-McGee Corp., 133 S.W.3d at 254;
Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629
(Tex. 2002). When the complaint is that the expert’s analysis of otherwise
reliable scientific data is flawed or that the underlying data itself is
questionable, a party must object to preserve its complaint. See Guadalupe-Blanco
River Auth. v. Kraft, 77 S.W.3d 805, 807 (
Reliability objections are important; they serve several purposes. First, they give the proffering party an opportunity to cure any defects, thus, avoiding trial and appeal by ambush; second, they give the trial court the opportunity to test and question the expert’s testimony and thereby intelligently perform its role as gatekeeper; and, third, they result in a more fully developed record for appellate review under the abuse of discretion standard. Ellis, 971 S.W.2d at 409, 412. Because the City’s complaints here go to reliability, an objection was required. Because the Court holds otherwise, I dissent.
II
I agree with the Court, however,
that there is no evidence to support the Pollocks’
takings claim under article I, section 17 of the Texas Constitution for damage
to their property. The Pollock’s theory in this case was that the City
effectively took their property (and caused their daughter’s illness) by
failing to abate the migration of benzene gas from the landfill after learning
of the problem. I agree with the Court that there is no evidence of the City’s
requisite intent for a takings claim here. ___ S.W.3d at ___ (citing City of
Dallas v. Jennings, 142 S.W.3d 310, 314 (
Article I, section 17, entitled
“Taking, damaging or destroying property for public use,” does not mention
bodily injury or death. Tex. Const. art. I, § 17. It refers only to property, granting the government
the legal right to take property for a public purpose with the corresponding
obligation to pay for it. Thus, the “State, in the exercise of its sovereign
power, has the unquestioned right to take, damage, or destroy private property
for public use,” State v. Hale, 146 S.W.2d 731, 736 (
I accordingly agree with the Court that the Pollocks cannot recover under Article I, Section 17 because there is no evidence that the City intended a taking, and, apart from that, no basis for the award of personal injury damages even had the City intended to damage the Pollocks’ property.
III
Although the Pollocks
do not have a takings claim, they have also asserted a negligence claim,
raising the issue of whether the Tort Claims Act applies here to waive the
City’s governmental immunity. See Tex.
Civ. Prac. & Rem. Code
§§ 101.001-.109. The Tort Claims Act provides a limited
waiver of governmental immunity “when personal injury or death is caused by a
‘use of tangible personal or real property if the governmental unit would, were
it a private person, be liable to the claimant according to
The City argues that the Tort Claims
Act does not apply in this case because the Pollocks
failed to establish a claim within its narrow waiver of immunity. The City’s
argument focuses on the court’s charge that asked the jury (1) whether the
“negligence, if any, of the City of
“Premises liability is the body of
law that [defines] the duties owed by an owner or occupier of land to persons
who come onto his or her real property to protect them from injury on account
of dangerous conditions or activities on the property.” 19 William V. Dorsaneo
By definition then a premises liability case involves an injury on the defendant’s premises. But Sarah Pollock was not injured on the City’s property; she became ill at her own home, allegedly because of the City’s negligent use and management of the neighboring landfill. The duty owed by the City under these circumstances is not dependent on Sarah’s status as an invitee, licensee, or trespasser, and thus the Pollocks’ claim is not a premises liability case. The duty here instead rests on the City’s obligation not to contaminate adjoining private property with its waste disposal operations at the West Avenue Landfill.
The jury found that the City’s
operation of the landfill was both negligent and a nuisance. Although there was
not evidence that the nuisance rose to the level of a taking, there was
evidence that the City’s negligence was a cause of the nuisance created by the
landfill. We have said that personal injury damages may be recovered under
these circumstances. See Vann v. Bowie Sewerage Co., 90 S.W.2d 561, 563 (
I conclude then that the negligent operation of a landfill that causes a neighbor to become ill on her adjoining property is a condition or use of property causing personal injury within the contemplation of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.021(2) (governmental unit of the State may be liable for personal injury or death caused by a condition or use of tangible personal or real property if a private person would be liable under Texas law). The Tort Claims Act, however, limits the State’s liability for the bodily injury or death of a person to the “maximum amount of $250,000.” Tex. Civ. Prac. & Rem. Code § 101.023(a). I therefore would modify the court of appeals’ judgment to reflect the $250,000 cap imposed by the Tort Claims Act, and, as modified, affirm the judgment awarding damages for Sarah Pollock’s personal injury.
___________________________________________
David M. Medina
Justice
OPINION ISSUED: May 1, 2009
[1] Daubert v. Merrell Dow Pharms., Inc.,
509
[2] One observer has suggested that analytical gaps are of two types: “(1) the underlying data-facts gap, which focuses on material variances between the data underlying the expert opinion and the actual facts of the plaintiff's case; and (2) the methodology-conclusion gap, which focuses on whether the expert properly explains how the methodology was applied to the plaintiff’s facts in arriving at the conclusion.” Kimberly S. Keller, Bridging the Analytical Gap: The Gammill Alternative to Overcoming Robinson & Havner Challenges to Expert Testimony, 33 St. Mary’s L.J. 277, 310 (2002).
[3]
The Court suggests that Ramirez concerned only a conclusory
challenge, but the case also involved a reliability complaint. One significant
issue in the case was when the left rear wheel on the Volkswagen came off its
axle. Ramirez, 159 S.W.3d at 902. Edward Cox,
the plaintiff’s metallurgical expert at trial, testified that a defective
bearing caused the wheel to separate from the axle.
[4]
Kraft estimated the methane-benzene generation ratio by using the USEPA
Landfill Gas Generation Model (LandGEM) version 2.01.
The model was developed by the EPA’s
[5] In the concluding paragraphs of that report, Dr. Patel stated:
If one looks at Sarah’s chromosomal markers as
mentioned above, the specific chromosomal aberrations noted and those detected
in benzene-exposed workers are remarkably similar. There is aneuploidy,
i.e.: > 46 chromosomes and specifically in benzene exposed workers there
were trisomies in the G group of chromosomes as noted
for Sarah, specifically for chromosomes: 7, 8, 9 and 21. It should be noted
that the association with childhood leukemia and benzene exposure has been
reported from
Particularly of parental exposure of solvents containing benzene, there is an increased risk of childhood leukemia. The odds ratio for parental benzene exposure was as high as 5.81. As mentioned above it was suggested benzene and its metabolites may cause genetic damage in germ cells, which are then passed on to the offspring and/or cause direct genetic damage in developing fetus following maternal exposure.
It also suggests that there is an increased likelihood of ALL when such an exposure occurs during the critical organogenesis phase if not as germ mutation. In-vitro experimentation using human leukemia cells HL60 and human lymphocytes following exposure to benzenetriol, a direct derivative of benzene, shows oxidated DNA damage. Similar DNA damage has also been shown to correlate in animal model systems. It has been mentioned that benzene is associated with acute myeloid leukemia; however, the overall data clearly does not indicate association limited to AML but also to ALL.
Thus, after reviewing the literature and Sarah’s case, per se, it is in my medical opinion that there is reasonable medical and scientific certainty and probability of linking maternal exposure to benzene, organic acids and hydrocarbons in the environment with the development of ALL in Sarah Pollock.
[6] The Court’s indiscriminate mixing of unreliable and conclusory expert opinions is most apparent in its reliance on Exxon Corp. v. Makofski, 116 S.W.3d 176 (Tex. App.–Houston [14th Dist.] 2003, pet. denied), a court of appeals’ opinion written by a current member of this Court, and Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). In both cases, timely objections were made to the reliability of the respective experts. Justice Brister, writing for the Fourteenth Court of Appeals, observed that it was the defendant’s responsibility “to object at trial (which it did repeatedly) so the plaintiffs would have an opportunity to cure any defects regarding reliability and present us with a fully developed record.” Makofski, 116 S.W.3d at 180-81 (citations omitted). Having preserved its complaint, the court of appeals subsequently concluded that the expert’s testimony was unreliable and thus no evidence because “[n]o epidemiological study established a statistically significant doubling of the risk of ALL from exposure to benzene” as required by Havner. See id. at 188. This Court then concludes that “[f]or the same reasons, we reach the same conclusion here.” ___ S.W.3d at ___. But this case is not Makofski or Havner as the City conceded during oral argument, stating: “We cannot go into the statistical significant part of Havner because we did not object to the scientific reliability, we didn’t make a Daubert objection and we have not tried to do that.” Thus, the Court’s conclusion is based on an authority the City has expressly conceded does not apply.
[7] See, e.g., Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910–911 (Tex. 1981) (owner or occupier liable for injury caused by debris falling across public street from building being demolished); Atchison v. Tex. & P. Ry. Co., 186 S.W.2d 228, 229 (Tex. 1945) (duty breached when smoke from a grass fire on the defendant’s premises reached an adjacent public highway, causing a collision); Texas & P. Ry. Co. v. Brandon, 183 S.W.2d 212, 214 (Tex. Civ. App.—Eastland 1944, writ ref’d) (duty to keep premises free of combustible materials to avoid fire that could spread to neighboring property); Skelly Oil Co. v. Johnston, 151 S.W.2d 863, 863-67 (Tex. Civ. App.—Amarillo 1941, writ ref’d) (gasoline manufacturing plant liable for creating oil slick on adjoining highway); see also J. Hadley Edgar, Jr. & James B. Sales, Texas Torts & Remedies § 20.08, Liability for Losses Outside Property (2009).